Embattled Alpheous Mfana Nxumalo, who is currently facing rape charges, has filed an application challenging the constitutionality of the Sexual Offences and Domestic Violence (SODV) Act of 2018.
The former government spokesperson is accused of raping two minor siblings aged 17 and 18, respectively.
He was released on bail fixed at E50 000 by High Court Judge Mumcy Dlamini on April 15. He paid E5 000 cash and E45 000 was surety.
At the time of his release, Nxumalo alleged that a cabal was working behind the scenes to prevent him from continuing in his role as government spokesperson.
In a new application whose merits have not yet been tested in court, Nxumalo is seeking an order declaring the charges against him unlawful, irregular, and unconstitutional. He also seeks to have the criminal proceedings instituted by the director of public prosecutions (DPP) set aside.
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The respondents in the matter are; Principal Magistrate David Khumalo (first ), the DPP (second), the Speaker of the House of Assembly (third), the president of the Senate (fourth), the deputy prime minister (fifth), and the attorney general (sixth).
Nxumalo wants the High Court to declare the SODV Act No. 15 of 2018 unconstitutional.
He argued that it was enacted without proper compliance with Section 115 of the Constitution, which governs the legislative process for bills that introduce significant changes to Eswatini law and custom. He contended that the entire legislation should be set aside due to non-compliance with the prescribed procedure. Specifically, Nxumalo argues that before a bill that seeks to significantly alter the country’s legal and customary framework can be passed into law, it must be referred to the council of chiefs, as stipulated in Section 115.
Nxumalo submits that both the Speaker of the House of Assembly and the president of the Senate failed to refer the SODV Bill to the council of chiefs prior to tabling it for debate and subsequent adoption by parliament. As a result, he maintains that the legislation is unlawful, unreasonable, and irrational.
He wants an order directing the Speaker of the House of Assembly to produce, within 10 days of being served with the application, the Hansard or any similar record of parliamentary proceedings that led to the promulgation of the SODV Act.
Nxumalo also wants the court to declare that his prosecution under the SODV Act is unlawful and should, therefore, be set aside. He also asks the court to direct the first and second respondents, the principal magistrate and the DPP to stay his prosecution, which is scheduled to resume on July 14, pending the finalisation of this constitutional challenge.
Nxumalo has requested that his matter be enrolled for hearing, and the application is set to be made before the High Court on June 13, at 9:30 am.
